SUMMARY: OSHA is developing a regulation requiring employers to
certify abatement and submit abatement plans and progress reports as a result
of OSHA citations. In addition, OSHA is proposing the placement of a tag on
cited equipment to alert affected employees that a hazardous condition exists
while abatement is being accomplished. Violation of the regulation would
result in civil penalties as prescribed by section 17 of the Occupational
Safety and Health Act of 1970. This notice invites interested parties to
submit comments and recommendations on the issues detailed in this document,
as well as other pertinent issues. All the information received in response
to this notice will be carefully reviewed. The comments received will assist
OSHA in developing the final regulation.

DATES: Written comments on the notice of proposed rulemaking must be
postmarked no later than July 18, 1994.

SUPPLEMENTARY INFORMATION: The purpose of this proposed rule is to
require employers to inform OSHA and their employees about measures they will
take or have taken in response to OSHA citations, as well as to inform
employees about OSHA citations and the alleged safety or health hazards
described therein.

I. Background

Under the Occupational Safety and Health Act of 1970 (i.e., "the Act" or
"the OSH Act"), 29 U.S.C. Section 651 et. seq., OSHA inspects workplaces to
determine whether employers are complying with OSHA standards and other
statutory or regulatory requirements. If OSHA believes that an employer has
committed a violation, a citation is issued. The citation will reference the
requirement allegedly violated, the alleged violation, and note the proposed
penalty and a date by which the violation is to be corrected, i.e., the
abatement date. Section 9(a), 29 U.S.C. Section 658(a).

Currently, the cover letter to the employer which accompanies an OSHA
citation states that the employer must notify the Area Director promptly by
letter of abatement of violations. (OSHA Instruction ADM 1-1.12A CH-7, August
3, 1987. "IMIS FORMS Manual", Appendix C, page C-22). No specific regulation,
however, authorizes this notification action. When, therefore, an employer
does not provide written verification of abatement, OSHA may, depending on
the circumstances, seek to verify abatement by making further efforts to
communicate with the employer (e.g., by telephone), or by conducting an
on-site follow-up inspection.

On May 1991, the General Accounting Office (GAO) issued a report to Congress
in which it assessed the adequacy of OSHA's policies and procedures for
determining whether hazards have been abated. The report (GAO/HRD-91-35) (Ex.
1)(1) found that these policies and procedures have limitations that impede
the Agency's ability to detect employers who have failed to abate the safety
and health hazards for which they have been cited. GAO found that OSHA's
policies: (1) Do not require, but merely request, employers to provide
evidence of abatement, and (2) inadequately address confirmation of hazard
abatements found at construction worksites.

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Footnote(1) "Ex.," followed by a number, designate the exhibit in the
docket containing the referenced document.

The GAO report concluded that OSHA would obtain improved evidence of
abatement if its regulations required employers to provide specific
documentation that they have abated hazards. The report further concluded
that such a requirement would enhance OSHA's ability to detect noncomplying
employers and determine where to conduct follow-up inspections. Employers
also would be more likely to abate hazards because they would have to provide
specific evidence of abatement. Accordingly, GAO recommended that OSHA
promulgate a regulation requiring employers to submit detailed evidence of
what corrective actions have been taken to abate hazards.

GAO was also concerned about hazard abatement problems in the construction
industry due to the mobility of hazardous equipment. The report's conclusion
stated:

OSHA needs to confirm abatement of construction hazards in such a way that
they will not be repeated at subsequent worksites. OSHA's practice of
accepting worksite closing as a form of abatement allows the continuation of
procedures and practices that perpetuate hazardous conditions. Consequently,
contractors can continue to use a defective piece of equipment, untrained
employees, or inadequate procedures and processes at subsequent worksites.
OSHA should require contractors to take abatement actions that will correct
what caused the hazard rather than just eliminate the hazard at the
inspection site. (emphasis added) (GAO/HRD-91-35)

The second GAO recommendation was for OSHA to revise its polices so that (1)
citations to employers at construction worksites require correcting the
condition, equipment, or procedure that create the hazard, and (2) employers
will not be able to "abate" hazards solely by moving to another location.

Although not referenced in the GAO report, unsuspecting employees may be
exposed to similar hazards under conditions in which the place of employment
and equipment are permanent, but there is a frequent turnover of employees in
temporary jobs or employees are rotated frequently through different job
assignments. Also, workers in mobile crews who visit different job sites
should have available hazard warning information regarding defective
equipment which they must operate.

Current OSHA policy is that written, detailed plans of abatement shall be
submitted to the Area Director when citations are issued alleging (i.e. noise
or air contaminant) violations and OSHA orders that engineering or
administrative controls be implemented. In these cases, employers are also
asked to submit progress reports, generally every ninety days, detailing
steps taken to achieve complete abatement (e.g., procurement of engineering
controls). Field Operations Manual, chapter V (appendix), E.4.a. and c.,
E.5.a. and c. (Ex. 2) OSHA's policy, therefore is to have employers verify
that the violation cited has been corrected. Despite this policy, there is no
existing regulation, enforceable by citations and civil penalties, which
mandates employers to submit abatement plans, progress reports, or abatement
verification letters. Thus, OSHA proposes that employers should be required
by regulation to submit such documents.

Currently, 29 CFR 1903.16 requires the posting of a citation at or near the
place of the alleged violation. This regulation is inadequate in many
instances to notify employees that OSHA has required the abatement of
hazardous conditions because citations are often posted on company bulletin
boards that employees may not see or read. Employees are more likely,
therefore, to be informed about hazardous equipment they are operating via a
required tag affixed to that equipment than by a posted citation. OSHA
already requires that employers in general industry and construction affix
accident-prevention tags informing employees about hazardous conditions. 29
CFR 1910.145(f) and 1926.200(h). However, these standards do not require
employers to state that a condition has been cited. Further, the General
Industry standard does not apply to construction, maritime, or agricultural
employers. 29 CFR 1910.145(f)(1)(ii). Therefore, OSHA also proposes that all
employers covered by the OSH Act be required to affix tags to cited equipment
informing employees about an OSHA citation regarding that equipment.

Legal Considerations

Introduction

For purposes of the proposed rule, there are two key terms, i.e., "abatement
date" and "final order." The following discussion is provided in order to
relate these terms to the statutory framework created by the OSH Act. The
discussion, however, is general in nature and is not intended to address
every situation that may arise in the course of litigation.

Contesting a Citation

As noted above, an employer has the right, under the OSH Act, to contest a
citation or a prescribed abatement date. (employers may also contest only the
amount of the penalty proposed for a violation, but this action does not
delay the abatement period prescribed for that violation). An abatement date
can also be contested by an affected employee or a representative of affected
employees. If neither the employer nor employees contest the citation, the
date set forth in the citation for the correction of the violation is the
abatement date.(2)

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Footnote(2) The Act provides that an employer may file a notice of contest
within fifteen working days of receiving the notification of proposed
penalty. Section 10, 29 U.S.C. Section 659. (Under current OSHA practice, the
notification of proposed penalty is attached to the citation.) Appellate
courts have held that OSHA may set an abatement date which falls within the
fifteen-day period, in which case the period allowed for contest is shortened
accordingly. See Dunlop v. Haybuster Mfg. Co., 524 F.2d 222 (8th Cir. 1975);
Brennan v. OSHRC and Kesler & Sons Construction Company, 513 F.2d 553, 557-58
(10th Cir. 1975).

The Act also provides that, in the event of a contest, the employer's
obligation to abate a cited violation is suspended, provided that the
employer's contest has been made "* * * in good faith and not solely for
purposes of delay or avoidance of penalties." Section 10(b), 29 U.S.C.
Section 659(b). Once a citation is contested, an employer's abatement
obligation generally does not start to run until a "final order" has been
issued ending the administrative phase of the litigation.

When a citation or a prescribed abatement period has been contested, the
matter is adjudicated by the Occupational Safety and Health Review Commission
(i.e., "the Commission"), an independent agency headed by three Presidential
appointees (i.e., "Members"). Initially, a contested case is usually heard by
an administrative law judge (ALJ) of the Commission. The ALJ issues a
decision and order, which are then docketed with the Commission. This
decision and order may subsequently be reviewed by the full Commission.
Section 12(j), 29 U.S.C. Section 659(j). Under this review procedure, any
Member of the Commission may direct review of the ALJ's decision and order
within thirty days of the docketing date. If there is no direction for
review, the ALJ's decision and order becomes the final order of the
Commission. Id. Any abatement requirement affirmed or modified by an ALJ's
decision and order will start to run on the date that the ALJ's decision and
order become a final order. The new abatement date is determined by adding to
the final order date either: (1) The number of days allowed originally for
abatement in the citation (in cases where the ALJ affirms the abatement
requirement) or (2) the newly specified period for abatement (in cases where
the ALJ modifies the abatement requirement). If, However, the Commission
reviews an ALJ's decision and order, the employer's abatement obligation
remains suspended during the review process. Following its review, the
Commission will generally issue its own decision, which becomes a final order
thirty days after its decision is issued. Section 10(c), 29 U.S.C. Section
659(c).(3) Again, any abatement period affirmed or modified as a result of
the Commission's decision will start to run from the date its decision
becomes a final order.(4)

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Footnote(3) Prior to issuing its decision, the Commission may sever one or
more citation items from the case if it determines that it will not review
the ALJ's affirmance of those items. See Hamilton Die Cast Inc., 12 BNA OSRC
1797 (No. 83-308, 1986). The order severing citation items will become a
final order as to those items.

Footnote(4)It is possible that the Commission (or an ALJ) could, in
modifying an abatement requirement, state an actual date by which abatement
must be accomplished. In that situation, the abatement date would be the date
as specified.

An ALJ's decision and order that have not been directed for Commission
review, or a decision of the Commission following such review, also may be
challenged in the appropriate federal appellate court. Sections 11(a) and
(b), 29 U.S.C. Section 660(a) and (b). Filing a petition for appellate court
review does not automatically stay the employer's abatement requirements. Id.
In extraordinary cases, however, either the Commission or the court of
appeals may stay the final order at the employer's request. If stayed, the
abatement requirement does not begin to run until the appellate court upholds
the earlier decision of the Commission or the ALJ (i.e., to affirms or revise
the abatement requirement) by issuing a mandate or an equivalent order giving
legal effect to the appellate court's decision. Where a citation was vacated
by the Commission or the ALJ, and the appellate court subsequently reverses
that decision, the appellate court will generally remand the case to the
Commission for entry of an order to affirm the citation. The abatement
requirement then will begin to run thirty days after the date of the
appellate court's order. Should the appellate court, in such cases, not
remand the case for entry of a Commission order, the abatement obligation
begins to run from the court's own entry of mandate or equivalent order.

Settlement or withdrawal of a contest. At any stage of an ongoing contest
proceeding, there may be a settlement of the case, in whole or in part, or
the employer may unilaterally withdraw the notice of contest, in whole or in
part. Under these conditions, the ALJ or the Commission will enter an order
based on the settlement or withdrawal of the notice of contest. It is OSHA's
legal position that, in some circumstances, withdrawal or settlement actions
by employers become final orders by operation of law upon execution, without
approval by the Commission. (See Cuyahoga Valley Ry. Co. v. United
Transportation Union, 474 U.S. 3 (1985)). However, for purposes of
determining the timing of an employer's abatement obligations under the
proposed regulation, OSHA has elected to treat orders based on settlement or
withdrawal in the same manner as other ALJ and Commission orders, i.e., the
abatement obligation begins to run thirty days after the docketing of the ALJ
order by the Commission or after the issuance of the Commission order, as the
case may be. Should the parties phrase the settlement agreement such that
abatement is called for by a date certain, or that the abatement period will
run from a certain event (e.g., the date of execution of the agreement), the
abatement date will be determined in accordance with the terms of the
agreement provided no employee or employee representative contests the
abatement period specified in the agreement.

The existence of a Commission final order has a number of consequences for
enforcement. If OSHA determines that an employer has failed to correct a
violation on or before the expiration of the abatement date, OSHA may issue a
notification of failure to abate. Section 10(b), 29 U.S.C. Section 659(b). A
penalty of up to $7000 may be assessed for each day the failure to abate
continues. Section 17(d), 29 U.S.C. Section 666(d). If, after a final order,
the employer commits a substantially similar violation in a different
location, or with a different piece of equipment, or with the same piece of
equipment after a period of temporary abatement, the violation is classified
as repeated and a penalty of up to $70,000 may be assessed. Section 17 (a),
29 U.S.C. Section 666(a). Further, the Secretary may file a petition for
enforcement of a Commission order which has became final after a notice of
contest, or after a failure to contest within fifteen working days. This
petition is filed in the court of appeals and the court issues a decree
enforcing the Commission final order. If the employer violates this decree,
the employer may be subject to penalties for contempt of court. Section
11(b), 29 U.S.C. Section 660(b).

The discussion above details the regular procedures for obtaining and
enforcing final Commission orders with their concomitant abatement dates. In
addition, there are procedures for modifying the abatement requirements of a
citation due to employer hardship. Upon a showing by an employer of inability
to complete abatement within the prescribed period because of factors beyond
the employer's reasonable control, the employer may obtain a modification of
the abatement date. Section 10(c), 29 U.S.C. Section 659(c). A petition for
modification of abatement date (PMA) must be filed no later than the close of
the next working day following the date on which abatement is required. If
neither OSHA nor affected employees object to the employer's request, OSHA
may approve the PMA and it then becomes a final order pursuant to section
10(a) and (c) of the Act. If either OSHA or employees object to the PMA, the
case is forwarded to the Commission for adjudication. See 29 CFR 2200.37. The
Commission may either accept, reject, or modify the employer's request for
additional time and issue an appropriate order.

II. Summary and Explanation of the Regulation

Under the proposed regulation, an employer who has received an OSHA citation
must submit to the OSHA Area Director an abatement certificate, which states
whether or not the violation has been abated, as documentation of abatement.
The proposed regulation would also require an employer who has received an
OSHA citation to submit an abatement plan, where the Area Director requests
one by such means as a note on the citation, which sets forth a schedule for
the implementation of abatement measures. Under the proposal the employer
would also submit progress reports, which explain what measures have been
taken, if any, in the process of achieving abatement, when the Area Director
requires them. The proposed rule would also require employers to affix tags
on equipment noting that a citation has been issued.

Paragraph (a), Scope and Application

This regulation applies to all industries covered by the OSH Act, including
general industry, construction, maritime, and agricultural employers. The
specific identification of the major industrial groups, in this section, is
intended to make this fact clear.

Paragraph (b), Definitions

Only those terms of the definitions paragraph which were felt to need
further clarification are included in this section.

Abatement date. The date by which the employer must abate a violation
depends on the stage to which a case has progressed. This definition sets
forth the various ways an abatement date is determined. Circumstance (1)
refers to the date actually set forth in the citation, where the citation
item has not been contested. As explained in Section I, this date applies
even if it is with the fifteen-working-day period normally available for the
filing of a notice of contest.

Circumstance (2) is self-explanatory, as it refers simply to adding to the
final order date either the amount of time in days initially specified for
abatement on the citation or, if that period was modified by the Commission
or its judge, the amount of time so modified.

Circumstance (3) refers to a date for abatement "expressly set forth" by the
Commission, or a Commission administrative law judge. The phrase "expressly
set forth" refers to a date certain or to a set number of days from the final
order date specified date.

Circumstance (4) refers to a date set in a PMA final order. The term (PMA)
refers to a petition for modification of the abatement date described in
Section 10(c) of the OSH Act, 29 U.S.C. Section 659(c). A PMA final order
results either from OSHA's approval of an uncontested PMA or the Commission's
approval, modification or rejection of the employer's request for additional
time in order to complete abatement.

Circumstance (5) refers to settlement agreements signed by OSHA and the
employer, and, in some cases, employees or their authorized representatives.
As in circumstance(3) the phrase "expressly set forth" refers to a date
certain or to a set number of days from the final order date or other
specified date.

Abatement plan. As the definition implies with its reference to "outlining a
schedule for the implementation of measures to achieve abatement", an
abatement plan required by a citation will specify the requirement for and
the frequency of "progress reports." Generally, abatement plans and progress
reports will be associated with multi-step or long-term abatement.

Citation item. A citation item is a single instance of a violation. For
example, a citation may contain "Item 1", alleging that the employer has one
machine in violation of 29 CFR 1910.212(a)(1) because it was not guarded. A
citation may also list several violations of the same standard under the same
citation item, for example "Item 1, instance a", and "Item 1, instance b".
"Item 1, Instance a", and "Item 1, Instance b", etc. are all separate
"citation items" within the meaning of the proposed regulation. Final order
date: The date a citation becomes a final order is the date on which a
citation becomes effective. The major ways a citation can become a final
order are detailed in the definition.

The first category is that of an uncontested citation. If there is no
contest by either the employer or the employees, the citation becomes a final
order automatically, fifteen (15) working days after the date the employer
receives the citation and proposed penalty, pursuant to Section 10 of the OSH
Act, 29 U.S.C. Section 659.

The second category refers to situations in which there has been a contest
either by the employer or by employees, resulting in the issuance of a
decision or order by an ALJ. Under Section 12(j) of the OSH Act, 29 U.S.C.
Section 661(j), a decision of an ALJ becomes a final order of the Commission
thirty days "after such report" if no member of the Commission directs review
of the case. Section 12(j) has been construed by the Commission to mean that
the thirty-day period runs from the date on which the decision of the ALJ is
docketed by the Commission. (See 29 CFR 2200.90(b)(2); Robert W. Setterlin &
Sons Co., 4 BNA OSHC 1214 (No. 7377, 1976)).

The third category refers to decisions issued by the Members of the
Commission, including orders severing items from a case. Pursuant to Section
10(c) of the OSH Act, 29 U.S.C. Section 659(c), such decisions become final
orders thirty days after their issuance, and the filing of petitions for
review of these decisions in a court of appeals does not stay the employer's
abatement obligation unless a stay has been expressly ordered.

The fourth category addresses the two situations in which the start of an
employer's abatement obligation depends on action by a court. In those cases
in which a court of appeals stays an abatement requirement, the abatement
requirement starts when the court issues its mandate or an equivalent order
following a decision of the court upholding the Commission's affirmance of
the citation. In those cases where the Commission did not affirm a citation
but the court reverses that decision, the abatement obligation starts upon
the court's issuance of its mandate or equivalent order unless the court
remands the case to the Commission for the issuance of an appropriate
Commission order. In that situation, the abatement period starts when the
Commission's order becomes final thirty days after its issuance.

PMA final order. This is the order approving, modifying or rejecting the
employer's request for additional time to complete the abatement requirements
of the citation.

Paragraph (c), Abatement Certificate

Paragraph (c)(1) specifies the minimum content of the abatement certificate;
(c)(2) provides special procedures for reissuing an abatement certificate for
those situations where abatement was not initially completed; and (c)(3)
allows an employer to combine the individual certifications of hazard
abatement into one certificate.

Paragraph (c)(4) of the proposed regulation requires the abatement
certificate to be accompanied by "documentary evidence." OSH envisions
"documentary evidence" to be any type of document which provides evidence
that a violative condition which was cited has, in fact, been abated. The
examples of documentary evidence which follow are provided in order to
clarify OSHA's intent and are not to be considered as the only methods which
would be acceptable to the Agency, nor are they automatically accepted in all
cases: (1) An invoice or receipt for purchase or disposal of goods and
services; (2) analyses or reports from industrial hygienists, engineers, or
other experts indicating the methods by which the extent to which the
hazardous condition has been abated; (3) a manufacturer's recertification for
repaired equipment; (4) contracts and specifications for services; (5)
training records, programs, and attendance sheets; (6) in-house
certification; (7) photographic prints depicting the abated condition which
have been labeled appropriately with the citation and item references as they
appeared on the citation; and (8) videotape with concise audio and/or visual
identification for the citation reference.

Paragraph (d), Abatement Plan

Paragraph (d) of the proposed regulation refers to written abatement plans.
OSHA currently requests employers to submit abatement plans when the Area
Director finds them appropriate in connection with safety or health
violations. The proposed regulation would give the Area Director discretion
to require abatement plans with respect to either safety or health
violations.

Paragraph (e), Progress Reports

Paragraph (e) of the proposal refers to written progress reports. OSHA
policy currently provides for progress reports whenever the Area Director
requests them in connection with safety or health violations requiring
multi-step or long term abatement. The proposed regulation would make such
progress reports mandatory when required by the Area Director and indicated
on the citation.

Paragraph (f), Tagging of Cited Equipment

Paragraph (f) of the proposed regulation requires the placement of a tag on
cited equipment in order to alert employees who might be exposed to the
hazards of that equipment. The tag will state that this equipment has been
cited. This procedure will address the situation, common to the construction
industry, in which cited equipment is removed from one worksite to another
where employees are not aware of the hazardous condition. The tag
requirements found in this proposed regulation are intended to provide such
employees with knowledge of the violative condition of the equipment. The
proposal provides that these warning tags shall comply with the current OSHA
requirements for accident prevention tags (i.e. use, signal word, and general
tag criteria) found in 1910.145(f).

The proposed regulation would require the tag to remain in place on the
equipment until the defect has been remedied. If the equipment is removed
from the workplace, sold, or otherwise transferred, it is OSHA's intent that
the tag remain on the equipment. Mere lack of employee exposure to the
equipment will not allow the employer to remove the tag.

The reference to "tagging equipment" does not require the tagging of
supplies, furnishings, policies, procedures or building service distribution
systems such as for water. However, individual component parts within a
distribution system may be subject to tagging. For example, an unguarded
drive shaft on a circulating pump in a water distribution system found in
violation of the machine guarding standard would be considered equipment
within the meaning of the regulation and thus require tagging.

Paragraph (g), Transmittal of Documents

OSHA has included the following note in paragraph (g).

Note: Receipt of an employer's documents by the Agency under this
regulation does not constitute an agreement that the employer is in
compliance.

There are three reasons for this provision. First, although the Agency will
try to evaluate submitted material in a timely fashion, other agency
priorities may delay such action. Second, in some cases, the submitted
materials may not accurately or completely describe the abatement. Third,
changing working conditions may make the abatement action described in the
materials submitted inaccurate or inadequate.

Paragraph (i), Posting Requirements

Paragraph (i)(5) of the proposed regulation states that the final abatement
certificate must remain posted until abatement has been completed or for six
calendar days, whichever is later. Thus, if abatement has been completed, the
certificate shall remain posted for at least six days after completion. If
abatement has not been completed, the abatement certificate initially
submitted shall remain posted until the violation has been abated. When
abatement has been accomplished, the new final abatement certificate shall
remain posted for six days. If a final abatement certificate deals with a
number of citation items, it shall remain posted for as long as it takes to
comply with the posting requirements for all of the items. OSHA believes that
the posting of the abatement certificate will inform employees whether or not
the hazard has been abated and also help to assure the accuracy of the
certificate.

III. Pertinent Legal Authority

This proposed regulation is authorized by Sections 8(c)(1), 8(g)(2), and
9(b) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C.
Section 657 and 658. Under Section 8(c)(1) "[e]ach employer shall make, keep
and preserve, and make available to the Secretary or the Secretary of Health
[and Human Services] * * *, such records regarding his activities relating
to this Act as the Secretary, in cooperation with the Secretary of Health
[and Human Services] * * *, may prescribe by regulation as necessary or
appropriate for the enforcement of this Act or for developing information
regarding the causes and prevention of occupational accidents and illnesses."
Section 8(g)(2) empowers the Secretary of labor to "prescribe such rules and
regulations as he may deem necessary to carry out [his] responsibilities
under this Act." Moreover, pursuant to Section 8(c)(1), the Secretary has
authority to issue regulations requiring employers to keep their employees
informed of the employers' responsibilities under the Act. Section 9(b)
authorizes the Secretary to promulgate regulations associated with the
posting of citations.

In addition, the Secretary's responsibilities under the Act are defined
largely by its enumerated purposes, which include: Providing for appropriate
reporting procedures that will help achieve the objectives of this Act and
accurately describe the nature of the occupational safety and health problem
[29 U.S.C. Section 651(b)(12)]; developing innovative methods, techniques,
and approaches for dealing with occupational safety and health problems [29
U.S.C. Section 651(b)(5)]; and providing an effective enforcement program [29
U.S.C. Section 651(b)(10)].

For the reasons set forth in the preamble, the Secretary asserts that the
proposed regulation is necessary and appropriate to conduct enforcement
responsibilities under the Act, to develop information about the prevention
of occupational accidents and illnesses, and to inform employees of their
protections and obligations under the Act.

IV. Comments and Information Requested

Comment is requested on all issues involving the proposed regulation. In
particular, OSHA requests comment on the following questions:

1. What type of documentary evidence should OSHA require employers to submit
as proof of final abatement? Should the type of documentation required to be
submitted as proof of final abatement vary according to what is required for
abatement, the type of hazard, or the classification of violation (i.e.,
willful, repeat, serious, other-than-serious, regulatory)? What criteria
should OSHA apply in judging either the sufficiency or quality of the
documentation? 2. What are the costs (time and money) of complying with this
new regulation and the basis for estimating these costs? 3. What will be the
effects of the requirement that employers post their abatement documents? 4.
How do the proposed abatement verification procedures differ from current or
previous practices of informing OSHA that abatement has been accomplished? 5.
How much time does each employer currently spend on abatement verification?
6. What is the appropriate level of management to sign the abatement
verification? 7. What are employer experiences with verifying abatement of
cited conditions for other Federal and State agencies, especially State
occupational safety and health agencies? 8. Given the need for evidence of
abatement, should an employer be required to submit abatement certification
if the employer has actually abated the condition during the OSHA inspection?
9. Should OSHA develop an abatement certification form? If so, what
information should the form contain? 10. OSHA is proposing in paragraph (f)
the use of a tag to be placed on cited equipment to alert affected employees
that a hazardous condition exists with the equipment. Specific comment is
requested on this particular issue. What information should the tag contain?

Executive Order 12866 (58 FR 51735) requires regulatory agencies to assess
the costs and benefits of intended regulations, to consider the possible
alternatives, and to select the most cost-effective form of regulation. The
Regulatory Flexibility Act (5 U.S.C. Section 601 et seq.) requires the
Occupational Safety and Health Administration (OSHA) to consider the impact
of the regulation on small entities.

This regulatory impact analysis presents the costs, benefits (cost savings),
and economic impact of the proposed regulation requiring certification of
abatement. The impact on small businesses is also presented.

The Agency has preliminarily concluded that this regulation is not a
"significant regulatory action" as defined in Executive Order 12866, Section
3, Paragraph (f).

The proposed regulation for abatement verification would require employers
to notify OSHA Area Directors whether or not cited violations have been
abated. It would require employer to notify OSHA Area Directors whether or
not cited violations have been abated. It would also require employers to
offer documentation of abatement plans and progress reports for multi-step
abatement efforts. Based on a survey of OSHA regional offices, OSHA estimates
that as many as 70 percent of cited employers eventually certify and document
their abatement actions to some degree at the present time. This regulatory
action will potentially affect all employers covered by the OSH Act.

This regulatory action can impose penalties for non-reporting of conditions
even if they have been abated and can also lead to an increase in the
penalties that employers face from unabated, violative conditions. Failure to
verify abatement on a timely basis is an additional violation. When abatement
is verified by the employer but not actually performed, criminal penalties
for false statement may apply. Increased penalties give employers an
incentive both to abate and to verify abatement, and to do so in a timely
manner. Abatement reduces the risk of injury, illness, and death for
employees. The Agency has not estimated the extent of injuries, illnesses,
and deaths averted by this regulatory action, because abatement itself is
already required by the OSH Act.

B. Costs of Compliances

Certifying Abatement

Federal OSHA and State-plan agencies performed about 127,000 workplace
inspections in 1991, issuing about 413,000 separate (upgrouped) violations
(Table 1). Less than 1 percent of the violations were for failure to abate.
About 10 percent of all citations were contested.

There were about 9,000 follow-up inspections by OSHA and State-plan agencies
in 1991 that resulted in about 4,300 violations, of which 71 were for failure
to abate (Table 2). About 18 percent of all follow-up violations were
contested.

The Agency estimates that it will take firms, on average, 15 minutes to
prepare and mail documentation to certify abatement, independent of firm
size. The Agency estimates that the managers or proprietors who prepare the
certification of abatement earn a total wage of $25 per hour, based on data
in the Bureau of Labor Statistics news, June 18, 1993.

A ceiling, or maximum estimate, of the cost to employers for verifying
abatement, including preparation of abatement certificates and submission of
documentation, can be calculated by multiplying the number of violations with
the estimated average time to verify abatement (not the time and cost to
comply with the OSHA standard cited) and with the supervisory wage rate
(annual, including benefits), or

Since a large fraction of employers cited for violations now inform OSHA
that abatement was performed and sometimes offer documentation, the new
additional cost to employers from this regulation is probably much less than
the ceiling estimate of $2.6 million annually. Other costs, such as for
photocopying, photography, or other documenting activity, are believed to be
minimal. The cost of tags for cited equipment is also minor as both the
general industry and construction standards already contain accident
prevention tagging requirements (See 1910.145 and 1926.200).

Abatement Plans and Progress Reports

The proposed regulation allows the Agency's Area Director "at his or her
discretion" to require an abatement plan and progress reports when multi-step
abatement is "deemed appropriate." At the current time, when the Area
Director issues a citation to an employer (usually involving air
contaminants, noise, or ergonomics) which will require a long, or multi-step,
abatement effort, the citation letter lists both the steps to be taken and a
schedule for completion. The Agency in its citation letter informs the
employer that it must send progress reports to the Area Director.

Since the employer will have in hand OSHA's proposed plan for multi-step
abatement to use as a guide, the Agency estimates that it will take an
employer two hours to write the plan as required by the proposed regulation.
The Agency estimates that, on average, there are three steps in a multi-step
abatement and that it will take the employer 30 minutes to prepare each
progress report. The Agency estimates that the total wage rate of a
supervisor, manager, or proprietor who would perform this work is $25 per
hour (Bureau of Labor Statistics News, June 18, 1993).

Currently, citations requiring multi-stage abatement efforts are a small
percentage of all citations. Virtually all of the multi-stage abatements for
Federal violations are for three causes: Ergonomics, noise, and permissible
air limits. In 1991 there were 749 Federal OSHA inspections that resulted in
citations for ergonomics, air contaminants, noise, or single-substance OSHA
standards, resulting in 1,934 violations (all of which would have required
multiple step abatement). Based on this number of multi-stage abatements
required in Fiscal year 1991, and assuming that State-plan agencies had an
equal number, the Agency estimates that the cost of proposing multi-step
abatement plans and providing progress reports is:

Cost = (1934 X 2) X $25/hr X [2 hours + (3 X 1/2 hours)] = $338,450.

C. Benefits (Cost Savings)

Verification Efforts

This regulatory action will reduce time-consuming efforts required of OSHA's
enforcement officers to verify and document abatement in order to close
files, thereby increasing the time available for inspection activities.
OSHA's Directorate of Compliance Programs estimates that these efforts
consume approximately 5 percent of compliance staff time, or the equivalent
of 50 full-time compliance officers for Federal enforcement. The Agency
estimates that an equal number of full-time equivalents perform this task for
State-plan agencies, or a total of 100 full-time-equivalents. With an average
estimated salary of $50,000 including benefits, the dollar value of this time
is approximately $5 million annually. The Agency estimates that the increased
work of collecting and analyzing abatement certificates and accompanying
documentation for enforcement agencies will be minor - OSHA is currently
receiving abatement information for approximately 70 percent of its
citations. The Agency estimates that affected employers should also save
approximately the same amount of time and money ($5 million annually) spent
in responding to OSHA's letters and calls seeking verification of abatement.

Follow-Up Inspections

In FY 1991, Federal OSHA performed about 2,000 follow-up inspections, and
State-plan agencies about 7,000 (Table 2), for a total of about 9,000
annually. Combined, these efforts represented 100,700 staff hours,(5) or
approximately 50 full-time compliance officers. One of the Agency's goals in
promulgating this regulation is to reduce the resources employed in follow-up
inspections as well as other unproductive efforts associated with abatement
verification. The Agency's Directorate of Compliance estimates that under
this regulation, the Agency will decrease its follow-up inspections by half,
and OSHA estimates that State-plan agencies will do the same. With an
estimated average salary and benefits of $50,000, cutting follow-up
inspections by half will save enforcement agencies $1.25 million in resources
annually.

Although a significant portion of a Compliance Officer's time is spent in
preparation and travel to a worksite for these inspections, at the worksite
he or she is accompanied by one or more employer representatives as well as
an employees representative. The Agency estimates that: The total hourly wage
of the employer's representative is $25; the total wage of the employee's
representative is $15 (BLS News, June 18, 1993); and that a follow-up
inspection takes, on average, three hours. The Agency estimates that reducing
the number of follow-up inspections by half will annually save employers
$540,000 [4,500 inspections X 3 hrs X ($25 + $15)].

D. Economic Impact

The Agency estimates that the economic impact on individual employers,
industry profits, and product prices to be insignificant for every affected
industry, and therefore concludes that the regulation is economically
feasible. Only 15 minutes of a manager's time, on average, should be needed
to verify abatement and provide some documentation. Since employers will
avoid time spent responding to verification requests from the Agency as well
as follow-up inspections, the Agency estimates that overall there is a net
savings for employers. There is a savings of resources for Federal OSHA and
State-plan states. As a whole this regulation should result in a saving of
resources (Table 3).

TABLE 1.-OSHA INSPECTION DATA 1991

Inspections:

Federal OSHA

State plan States

Total

Safety

33,346

70,358

103,704

Health

8,963

14,053

23,016

Total

42,309

84,411

126,720

Violations:

Willful

2,437

950

3,387

Repeat

3,525

6,948

10,473

Serious

93,600

58,391

151,991

Unclassified

30

0

30

Other-Than-Serious

50,845

167,983

218,828

Failure to Abate

1,333

2,278

3,611

Total grouped violations

151,770

-

-

Total ungrouped violations

176,157

236,550

412,707

Contested Citations

3,339

5,088

8,427

Source: OSHA's Office of Regulatory Analysis

TABLE 2.-OSHA FOLLOW-UP INSPECTION DATA 1991

Federal OSHA

State Plan States

Total

Inspections:

Safety

1,477

5,610

7,087

Health

562

1,465

2,027

Total

2,039

7,075

9,114

Average Case hrs./Inspection

Safety

14

6

Health

46

14

Violations:

Willful

35

38

73

Repeat

688

423

1,111

Serious

991

303

1,294

Unclassified

1

0

1

Other-Than-Serious

773

1,005

1,778

Failure to Abate

43

28

71

Contested citations

119

116

235

Source: OSHA's Office of Regulatory Analysis

TABLE 3.-ESTIMATES OF COSTS AND COST SAVINGS OFCERTIFICATION OF ABATEMENT[In millions of dollars]

Firms

Federal and State OSHA

Costs

Savings

Costs

Savings

Compliance Cost:

Abatement verification

2.6

0

Abatement plans & progress reports

0.3

0

Total costs

2.9

0

COST SAVINGS:

Verification cost savings

5.0

5.0

Reduction in follow-up activities

.5

1.25

Total Savings

5.5

6.25

Net Savings

2.6

6.25

Source: OSHA's Office of Regulatory Analysis

VII. Regulatory Flexibility Certification

Pursuant to the Regulatory Flexibility Act of 1980 (5 U.S.C. Section 601 et
seq.), the Agency preliminarily certifies that the proposed regulation would
not have a significant impact on small businesses in any industry. As shown
in the earlier section on costs of compliance, the cost to individual small
establishments is estimated to be the same as for larger establishments. The
costs to establishments in every industry are very low. In addition, OSHA
inspects proportionately more large establishments than small establishments,
and the Agency as a matter of policy does not perform some types of
inspections on establishments having ten or fewer employees. The Agency
therefore concludes that this regulation does not place any undue burden on
small businesses.

VIII. Environmental Impact Assessment

Finding of No Significant Impact

This regulation has been reviewed in accordance with the requirements of the
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. Section 4321, et
seq.), the regulations of the Council on Environmental Quality (CEQ) (40 CFR
part 1500), and the Department of Labor's NEPA procedures (29 CFR part 11).
The Agency estimates that the regulation and employers' compliance efforts
will not have any impact on the environment or result in the release of
materials that contaminate natural resources or the environment.

IX. Federalism

This proposed regulation has been reviewed in accordance with Executive
Order 12612 (52 FR 41685, October 30, 1987), regarding Federalism. This Order
requires that agencies, to the extent possible, refrain from limiting State
policy options, consult with States prior to taking any actions which would
restrict State policy options, and take such actions only when there is clear
constitutional authority and the presence of a problem of national scope. The
Order provides for preemption of State law only if there is a clear
congressional intent for the Agency to do so. Any such preemption is to be
limited to the extent possible.

With respect to States that do not have State plans, the proposed regulation
conforms to the preemption provisions of section 18 of the OSH Act (29 U.S.C.
Section 667) which preempts State promulgation and enforcement of
requirements dealing with occupational safety and health issues covered by
Federal OSHA standards unless the State has an OSHA-approved State plan. See
Gade v. National Solid Wastes Management Association, 112 S.Ct. 2374 (1992).
Since States without State plans are already prohibited from issuing
citations for violations of requirements covered by Federal OSHA standards,
the proposed regulation does not expand this limitation.

The Agency certifies that this proposed regulation has been assessed in
accordance with the principles, criteria, and requirements set forth in
sections 2 through 5 of Executive Order 12612. Section 18(c)(2) of the OSH
Act [29 U.S.C. Section 667(c)(2)] provides that an OSHA-approved State plan
must provide for the development and enforcement of safety and health
standards which are, or will be, at least as effective as the Federal
program. In implementing this requirement, 29 CFR 1902.3(d)(1) requires a
State plan to provide a program for the enforcement of the State standards
which is, or will be, at least as effective as that provided under the OSH
Act, and provide assurances that the State-plan enforcement program will
continue to be at least as effective as the Federal program. Furthermore, 29
CFR 1902.4(a) requires State plans to establish the same procedures and rules
as those established by Federal OSHA, or alternative procedures and rules as
effective as the Federal procedures and rules. In particular, a State plan
must provide that employees be informed of their protections and obligations
under the Act. 29 CFR 1902.4(c)(2)(iv). It must also provide for prompt
notice to employers and employees when an alleged violation of standards has
occurred, including the proposed abatement requirements, by such means as the
issuance and posting of citations. 29 CFR 1902.4(c)(2)(x). Since the proposed
regulation will improve Federal OSHA's effectiveness in enforcing the OSH Act
and, in particular, will foster the abatement of violations and communication
to employees about their protections under the Act, State plans will be
required to adopt an identical regulation, or an equivalent regulation that
is at least as effective as the Federal regulation, within six months of
Federal promulgation. Thus, the proposed regulation complies with the
Executive Order 12612 with respect to State plan states because (1) it deals
with a problem of national scope, and (2) the OSH Act requires that
State-plan states adopt OSHA regulations or equally effective regulations.

State comments are invited on this proposal and will be fully considered
before a final regulation is promulgated.

X. State Plans

There are currently 25 states and other jurisdictions with OSHA-approved
occupational safety and health plans. These 25 jurisdictions are: Alaska,
Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South
Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and
Wyoming; and Connecticut and New York (for State and Local government
employees only).

The 25 jurisdictions with their own OSHA-approved occupational safety and
health plans will be required to adopt a regulation on abatement verification
that is at least as effective as this Federal regulation within six months of
the publication date of this Federal regulation (i.e. six months after the
final rule is published).

Current State abatement verification-procedures are described in State field
operation manuals and/or directives. Although these State procedures may
differ from the Federal procedures, the State-plan states, like OSHA,
generally lack regulations or statutory provisions specifically addressing
this issue, with the exception of Wyoming which does have a regulation
requiring abatement verification. Current State abatement verification
procedures are identical to the Federal except as described below:

(1) Nine States have abatement verification forms: Alaska, California,
Kentucky, Michigan, North Carolina, Oregon, South Carolina, Washington, and
Wyoming. On these forms, the employers describe the specific measures taken
to correct each alleged violation. Alaska, Oregon, Washington, Michigan, and
Kentucky also ask for documentary evidence. Alaska requests employers to
certify under penalty of perjury that the violations were abated by the dates
specified.

(2) California and Minnesota ask employers to submit progress reports.
California requests monthly progress reports for all long-term abatements,
while Minnesota requests a progress report for all serious and most other
violations of the State's general industry and construction standards.

(3) For long-term abatements, California requests employers to submit an
abatement plan which outlines their procedures for abatement, such as plans
for controls to be installed, and schedules for engineering, purchasing, and
installation. Washington schedules follow-up inspections every six months to
check progress made on long-term or multi-step abatement plans.

(4) Some States (e.g., South Carolina and California) send a reminder letter
to the employer just before the abatement verification form is due.
Washington reminds employers by letter or telephone. Kentucky and California
also send follow-up letters if the form is overdue.

(6) Wyoming has an enforcement regulation requiring the submission of
written documents saying when abatement has been accomplished. Failure to do
so can result in a civil penalty. Wyoming can also take legal action to
enforce submission of a letter of abatement.

(7) New York, which covers only state and local government employees,
conducts follow-up inspections to verify abatement for every violation;
employers are not asked to send in any abatement verification information.

XI. Public Participation

Interested persons are invited to submit written comments, data, views, and
arguments on any issue raised by this proposed regulation. These comments
must be postmarked by July 18, 1994, and submitted in quadruplicate to the
OSHA Docket Officer, Docket No. C-03, U.S. Department of Labor, Occupational
Safety and Health Administration, room N2625, 200 Constitution Avenue NW.,
Washington, DC 20210. Written submissions must clearly identify the issues or
specific provisions of the proposal which are being addressed, and the
position taken with respect to these issues or provisions. Comments will be
available for public inspection and copying at the above address between the
hours of 8:15 a.m. and 4:45 p.m., Monday through Friday (except Federal
holidays). All timely submissions will additionally, be made part of the
public record for this regulation, and will be available for inspection. The
preliminary regulatory impact assessment and the exhibits cited in this
document will be available for public inspection and copying at the above
address. All comments will be carefully evaluated and considered by OSHA in
developing the final regulation.

XII. OMB Approval Under the Paperwork Reduction Act

5 CFR part 1320 sets forth procedures for agencies to follow in obtaining
OMB clearance for information collection requirements under the Paperwork
Reduction Act of 1980, 44 U.S.C. Section 3501 et seq. This proposed abatement
verification regulation requires employers to submit to OSHA (1) an abatement
certificate and accompanying documentary evidence, (2) abatement plans and
progress reports when specifically required on the citation, and (3)
verification that the hazardous conditions cited have been corrected. In
accordance with the provisions of the Paperwork Reduction Act and regulations
issued pursuant thereto, OSHA certifies that it has submitted the information
collection requirements for this proposal to OMB for review under section
3504(h) of the Act.

The public reporting burden for this collection of information is estimated
to average fifteen minutes per citation item. Send any comments regarding
this burden estimate, or any other aspect of these information-collection
procedures, including suggestions for reducing this burden, to the Office of
Information Management, Department of Labor, room N-1301, 200 Constitution
Avenue, NW., Washington, DC 20210, and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.

XIII. Authority

This document was prepared under the direction of Joseph A. Dear, Assistant
Secretary of Labor for Occupational Safety and health, U.S. Department of
Labor, 200 Constitution Ave. NW., Washington, DC 20210. It is issued pursuant
to Sections 8(c)(1), 8(g) and 9(b) of the Occupational Safety and Health Act
of 1970, (29 U.S.C. Section 657, 658).

2. Part 1903 would be amended by redesignating 1903.19, 1903.20, and 1903.21
as 1903.20, 1903.21, and 1903.22, and by adding new 1903.19, to read as
follows:

1903.19 Abatement verification.

(a) Scope and application. This regulation requires all employers to verify
the abatement of violative conditions set forth in citations, as detailed
below.

(b) Definitions. Abatement date means

(1) the date set forth in a
citation for the abatement of a violation when the citation item has not been
contested;

(2) when a citation item has been contested and the Commission has
issued a final order, the date computed by adding to the final order date
either the amount of time allowed for abatement in the original citation or,
if the order modifies the abatement period, the newly specified period;

(3)
the date for abatement expressly set forth in a final order;

(4) the date for
abatement set forth in a PMA final order; or (5) the date for abatement
expressly set forth in a settlement agreement.

Abatement plan is a written, detailed plan outlining a schedule for the
implementation of measures to achieve abatement.

Abatement verification includes a final abatement certificate, an abatement
plan and progress reports.

Area Director means the employee or officer regularly or temporarily in
charge of an Area Office of the Occupational Safety and Health
Administration, U.S. Department of Labor, or any other person or persons who
are authorized to act for such employee or officer.

Assistant Secretary means the Assistant Secretary of Labor for Occupational
Safety and Health, or designated representative.

Citation item is a separately designated portion of a citation containing
one or more instances of violation.

Commission is the Occupational Safety and Health Review Commission.
Equipment is a machine or device, powered or unpowered, used to do work.
Final order date is (1) where the citation item has not been contested, the
fifteenth working day after the employer's receipt of the notification of
proposed penalty with respect to a citation item; (2) the thirtieth day after
the date on which a decision of a Commission administrative law judge,
including an order approving a settlement or a withdrawal of a notice of
contest, has been docketed with the Commission, unless a member of the
Commission has directed review; (3) where review has been directed, the
thirtieth day after the date on which the Commission issues its decision,
including but not limited to, an order approving a settlement or a withdrawal
of a notice of contest, or an order severing citation items from a case; or
(4) the date on which a court of appeals issues a decision where the
Commission order has been previously stayed.

PMA is a petition for modification of the abatement date. PMA final
order is (1) OSHA's approval of an uncontested PMA; (2) an order of a
Commission administrative law judge granting a PMA, in whole or in part,
unless the judge's decision is directed for review within thirty days of its
docketing with the Commission; (3) an order of Members of the Commission
granting a PMA, in whole or in part, where review has been directed; or (4)
an order of a court of appeals granting a PMA, in whole or in part.

Progress report is a written report explaining what measures have been
taken, if any, in the process of achieving abatement of a violative condition
in a citation item, other than measures ultimately achieving abatement; and
the dates on which those measures have been taken.

(c) Abatement certificate. Each employer shall submit to the Area Director
issuing the citation an abatement certificate with respect to each citation
item, and do so within thirty calendar days after the abatement date for the
citation item.

(1) The abatement certificate shall contain the following information:

(i) Each citation item;

(ii) A statement noting whether or not abatement has been accomplished with
respect to each citation item and instance listed in the citation;

(iii) A description of the measures taken to accomplish abatement;

(iv) The date abatement was accomplished;

(v) If abatement has not been accomplished, the reason(s) for not abating;

(vi) The signature of the employer or the employer's duly authorized
representative;

(vii) The date of the signature.

(2) If the employer has initially
stated in an abatement certificate that a particular citation item has not
been abated, and later the employer abates the condition, the employer shall
submit to the Area Director issuing the citation a new abatement certificate
within five calendar days after abatement.

(3) Abatement certificates for more than one citation item may be combined
in a single document.

(4) Each abatement certificate with respect to a citation item shall be
accompanied by documentary evidence that is sufficient to demonstrate clearly
that the hazard has been corrected.

(d) Abatement plan.

(1) An Area Director may require in a citation that the
employer submit a formal plan for the abatement of safety and health
violations in instances where multiple steps or long-term abatement actions
are necessary.

(2) When called for in a citation, the employer shall prepare a written,
signed, and dated abatement plan with respect to each citation item for which
the plan is required.

(3) Abatement plans for more than one citation item may be combined within a
single document.

(4) The abatement plan shall be submitted to the Area Director issuing the
citation within twenty-five calendar days after the date of the final order
or the date of the PMA final order.

(e) Progress reports. An Area Director, at his or her discretion, may
require progress reports in a citation where multi-step abatement is deemed
appropriate.

(1) The Area Director shall specify the citation item with respect to which
the progress reports are required, the measures which the Area Director
expects to be taken on or before the submission of each progress report, and
the date for the submission of each progress report, expressed as the number
of calendar days from the date of the final order or the date of the PMA
final order.

(2) The employer shall submit to the Area Director the requested progress
reports with respect to each citation item for which they are required under
the abatement plan.

(3) Progress reports for more than one citation item may be combined within
a single document.

(4) Progress reports shall be submitted at intervals specified by the Area
Director in the citation, but the first progress report shall not be
submitted earlier than thirty calendar days after the date of the final order
or the date of the PMA final order.

(f) Tagging cited equipment. (1) The employer shall affix a "Warning"
tag on all cited equipment upon receipt of the citation.

(2) The design, application, and use of the tag required by this section
shall be in accordance with 29 CFR 1910.145(f)(4).

(3) In addition to the information set forth in 1910.145(f), the tag shall
identify the equipment, state that a citation has been issued, and identify
where the citation is posted.

(4) The employer shall ensure that the tag remains affixed to the cited
equipment in a conspicuous location at or near the controls of such equipment
and/or the hazardous portion of the equipment, until the cited equipment is
brought into compliance with OSHA requirements or the equipment is
permanently removed from service. The temporary removal from service of cited
equipment is not compliance with OSHA requirements for the purpose of this
section. The protection and posting requirements of paragraph (i)(4) of this
section are also applicable to this paragraph.

(g) Document Transmittal. When this section requires submission of a
document to the Area Director, it may be submitted by first-class mail,
postage prepaid, facsimile transmission, or hand delivery. When the document
is mailed, the date of submission is the date of the postmark. When the
document is submitted by facsimile transmission or hand delivery, the date of
submission is the date when the document is received by the Area Director.

Note: Receipt of an employer's documents by the Agency under this
regulation does not constitute an agreement that the employer is in
compliance.

(h) Accuracy of documentation. The employer shall assure that each statement
in a document or accompanying documentation required by this section is
accurate.

(i) Posting requirements. A copy of each document required to be submitted
to the Area Director shall be posted, at the time of submission, at or near
each place the violation(s) described in the citation occurred.

(1) Where, because of an employer's operations, it is not practicable to
post a document at or near the location of the violation(s), such document
shall be posted, unedited, in a prominent place where it will be readily
observable by all affected employees.

(2) Where it is physically impracticable, because of a document's size or
magnitude, to post abatement plans and progress reports, a notice to affected
employees shall be posted indicating the location where the document(s) can
be reviewed.

(3) The abatement certificates, abatement plan(s) and progress reports shall
be provided, upon request for examination and copying, to employees, to
employee representatives, and to the Assistant Secretary.

Note: If employers are engaged in activities which are geographically
dispersed (see 1903.2(b)), the document may be posted at the location where
employees report each day. If employees do not primarily work at, or report
to, a single location (see 1903.2(b)), the document may be posted at the
location where employees work.

(4) The employer shall assure that any document required to be posted by
this section is not altered, defaced, or covered by other material.

(5) Any document required to be posted by this section shall remain posted
until the violation has been abated, or for six calendar days, whichever is
later.

(j) Penalties. Any employer failing to comply with the provisions of this
section shall be subject to citation and penalty in accordance with the
provisions of Section 9 and 17 of the Act.

(k) False statements. False statements knowingly made in any document
required by this section are subject to criminal penalties set forth in
section 17(g) of the Act. False statements knowingly and willfully made in
any document required by this section are subject to the criminal penalties
set forth in 18 U.S.C. Section 1001.

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